January 27, 2009

Regular readers know I have blogged a lot about the disparity I keep seeing in the ways in which child porn downloading cases are being prosecuted and sentenced in federal courts. And, thanks to a helpful readers, I just learned about an sentencing opinion issued last month in US v. Stern, No. 5:07-CR-00524 (N.D. Ohio Dec. 17, 2008) (available for download below), that notes this reality while quoting some of my blogging on this topic. Stern is a terrific opinion for lots of reasons, but you can understand my special affinity for these passages toward the end of the opinion:

The Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guideline Statistics. The Court is deeply troubled by its findings: “anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.” Professor Douglas A. Berman, Is There an Ivy-Leaguer Exception to Federal Child Porn Charges?(October 22, 2008), on-line at http:// sentencing.typepad.com. Based on the Court’s review of the case law, it is clear that “one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.” Id. This Court is “struck by the inconsistency in the way apparently similar cases are charged and sentenced.” Goldberg, 2008 U.S. Dist. LEXIS 35723, at *5-6 (considering nearly two-dozen cases).

In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles. The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation. Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice. Such conversation, though vital, should not take place here – lives are altered each and every time a district court issues a sentence: this is not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority – it must take the law as it finds it.

The Court, accordingly, has attempted to ensure that its sentence avoids unwarranted sentencing disparities to the greatest degree possible while still hewing to its view that this individual defendant must be punished with a term of imprisonment.

Comments

Is it typical for the term of community service to not be specified? I haven't read very many of these sentencing memoranda but I would have thought the terms of supervised release etc would be included within the text.

Posted by: Soronel Haetir | Jan 27, 2009 6:42:18 PM

Interesting decision. One thing is for sure, you cannot fault the judge's attempt to arrive at a just sentence. She obviously put a lot of thought into it, and approached the decision with a sense of humility.

Let's hope that Mr. Stern goes on to lead a productive life.

Posted by: federalist | Jan 27, 2009 6:55:43 PM

"In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles."

That's just not true. One can debate what exactly a "meaningful baseline" is, but given that she doesn't specify her criteria for a meaningful baseline, I'll just leave it at that.

"The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation."

Well, given the two most recent summary reversals the SC has made, it seems clear that sentences just are supposed to reflect the policy views of a given court.

Posted by: | Jan 27, 2009 7:12:37 PM

Congratulations on the recognition and thanks for posting this. After reading the sentencing memorandum, federal sentencing is starting to make sense.

Posted by: George | Jan 28, 2009 11:08:30 AM

The trial court's Memorandum Opinion reads like a black-letter casenote on federal sentencing. I was struck by how many factors could have been used either for or against a shorter sentence--depending on the interpretation by the court. I know that here in the Northern District of Texas, this guy would have received a sentence that was "sufficient, but not excessive" and was coincidentally withing the advisory guideline range.

Posted by: Mark | Jan 28, 2009 1:45:15 PM

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